18c: the process is still the punishment

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Despite the federal government’s amendments earlier this year, the process is still the punishment under section 18C of the Racial Discrimination Act. The Australian’s legal affairs editor Chris Merritt has explained the latest instance of baseless litigation under section 18C of the Racial Discrimination Act that is proceeding into the federal court system – against him and others at The Australian:

The Federal Circuit Court is about to deal with a claim under section 18C of the Racial ­Discrimination Act that could well be the last involving accusations that have already been found to be baseless….

The complainant, Sokhom Prins, alleges that a March 10 column of mine in The Australian, and subsequent email ­exchanges involving Hedley Thomas and Janet Albrechtsen, breached section 18C’s ban on speech that offends, insults, ­humiliates and intimidates ­people on the basis of their race, colour, nationality or ethnic background.

The column was a response to being accused by Ms Prins of being part of a “white racist posse”. I wrote that I was offended and insulted on the basis of my race and ethnic background and “I feel sure that my Tamil ­antecedents from southern India would share that opinion”.

Ms Prins wants the column removed from the internet and $1.6 million in damages.

The Australian Human Rights Commission terminated the complaint in July for being without substance, and the Federal Circuit Court will undoubtedly throw the complaint out in due course. But under laws like section 18C the process is the punishment. According to Merritt, The Australian will incur “possibly tens of thousands of dollars” in legal fees and wasted time defending itself against the frivolous litigation.

But will this really be the last instance of a baseless 18C complaint reaching the courts? The federal government’s procedural amendments to the AHRC that were passed in April intend to ensure that complainants no longer have an automatic right to take their terminated complaints to the courts, but must first persuade a judge to allow it to be heard. As the complaint against Merritt and the others at The Australian was made in March, the new rules do not apply, and as Merritt explains, the complaint is one that “could well be the last involving accusations that have already been found to be baseless.”

However, that presupposes that the complaint is actually terminated by the AHRC for being trivial, vexatious, misconceived or lacking in substance. In the legislation, there are three ways to take a complaint to the courts:

a) the court concerned grants leave to make the application; or

b) the complaint was terminated under paragraph 46PH(1)(h); or

c) the complaint was terminated under paragraph 46PH(1B)(b).

The first requires complainants to convince a judge to allow the case to be heard. The second (Section 46PH(1)(h)) refers to complaints that involve issues of public importance that should be considered by the courts. The third (Section 46PH(1B)(b)) refers to complaints where the AHRC president is satisfied that “there is no reasonable prospect of the matter being settled by conciliation.”

That is an exceptionally broad exception. In fact, the vast majority of terminated complaints at the Commission are terminated for this reason. It was for this reason that the infamous complaint against the students at the Queensland University of Technology was terminated by the AHRC in August 2015.

The government’s procedural amendments do not resolve the chilling effect of the 18C regime. The main effect of the law is not to directly punish offensive speech but to cause people to avoid the risk of legal repercussions by silencing themselves from engaging in lawful activity. This has a profound effect on freedom of speech undermines our democracy.

It is only a matter of time until another QUT – or another Merritt case – happens under the new laws. The only way to stop the assault on free speech is to repeal section 18C and similar laws altogether.

Morgan Begg is a Research Fellow at the Institute of Public Affairs. This article was originally published at the IPA’s Freedomwatch blog.